57 Mich. 589 | Mich. | 1885
The plaintiff brought suit in the Kent circuit court to recover for injuries sustained July 13, 1883, by
At the time of the injury the defendant had a train of cars drawn across this toll-road, the engine facing the south. They had run down to this point for some purpose of their own to aid them in getting into the city.. While this train stood across the highway, Mr. Weightman, with whom plaintiff was riding, drove up from the west to within thirty feet of the cars, and waited about ten minutes for them to back off the highway. At the end of this time the engine backed the train far enough so that' the engine cleared the highway; the cow-catcher being just over the cattle-guard on the north side of the highway, and being turned a little sideways to the highway by reason of the acute angle formed by the rails and the highway. From this cattle-guard to where Weightman crossed the rails was thirty-three feet.
The plaintiff claims, before Weightman started to drive across, the engine was blowing off steam from the safety-valve, but his team had become accustomed to ■this from being used by Weightman in delivering freights at the depots in the city, and were perfectly quiet, paying no attention to
The defendant claims that when the team was first seen by the engineer, the engine was moving slowly towards the north, and the accident had occurred; the engineer, being on the opposite side of the engine with his attention directed to the rear of the train, did not see the team at all until after it had broken loose from the wagon and run up the road ; that when the signal had been given to the engineer, and he started the train back, Weigh tman started to drive across; that when he reached the track the engine stood nearly at the north line of the highway, and at this point the horses were frightened and sprang forward and to one side ; that the road was turnpiked and the wagon was drawn into such
The cause was tried by jury, and the plaintiff recovered a . verdict for $2500, and the case comes here for review on error, the bill of exceptions containing substantially all the ■testimony in the case.
•Assignments of error number 1, 9, 10 and 11 raise the ■question of the sufficiency of the plaintiff’s declaration.The first relates to the introduction of evidence. The defendant objected to any being given, on the ground that the declaration does not state a cause of action, and asked the court to say to the jury that the plaintiff could not recover for the same reason. If this position of defendant’s counsel is correct, he should have demurred to the amended declaration ; but, aside from this, we do not think these exceptions well taken.
Upon the facts stated in the declaration, the duty of the defendant was clearly implied, and that is sufficient without an express averment. The engine and train had been obstructing the highway; Mr. Weightman had stood with his team and wagon some moments, waiting for the train to pass; it did so, and apparently for the accommodation of "Weightman, who wished to pass on east. The engine stood just out of the highway by the cattle-guard, and the road was clear; the horses were gentle and accustomed to cars and the usual noise made by them and engines. It was then “the plaintiff’s privilege to pass on, unless in some way warned to the contrary by the defendant or its servants. No such warning came until a burst of steam from the cylinder cocks was thrown from the engine against the horses just as they had crossed the defendant’s track, the wagon yet being thereon, enveloping the team in vapor, and frightening them to the extent that they became unmanageable. The engine ■stood heading towards the crossing, the cow-catcher being
Assignments numbered 2, 3, 4, 5, t>, 7 and 8 relate to-questions of evidence. We see no reason why it was not competent for Mr. Weightman to give his opinion as to what frightened the team. He was driving them at the-time, and his attention was directed to the surroundings, and-his observation must have enabled him to form some judgment. We find nothing improper in the rulings of the-court under either of these numbers.
The 13th, 14th, 18th and 28th assignments all relate to the-contributory negligence of the plaintiff. The court gave all that was proper to be given in the requests to which they refer in his general chai-ge. .
The attention of this Court is challenged to the negligence-claimed on the part of the defendant in the requests of the-defendant under the 12th, 16th, 17th, 19th and 20th assignments of error, and to those portions of the charge as given by the court numbered 23, 24, 25, 26 and 27 in the assignments of error. We have examined the requests referred to, and think they were all properly rejected. The most of these requests ask the court to pass upon the facts, which are not conceded, and therefore strictly within the province of the jury. The charge given by the court, and excepted to, is as follows: ' .
“ Naturally the first question which you will consider will be, was the engineer negligent in the manner alleged? And in determining this question you are at liberty to and should take into consideration the situation of the train, and the rights and duties of the engineer in its conduct. A railroad company has the right of way over the track, and in run*595 ning its trains over its road has necessarily the right to make all reasonable and usual noise incident thereto, whether caused by the escape of steam, rattling of cars, or from other causes. The defendant had the right to use the engine in any usual, ordinary way, and open the steam-valves when necessary to the proper management of the train; and whether the opening of these valves was neeessai’y, and whether it was usual and common to do so under like circumstances, is a question of fact for you to determine; or whether, on. the other hand, the engineer was negligent in what he did, is a question of fact for you to determine. If, as a matter of fact, the valves were not opened, the plaintiff cannot recover in this action at all; for, in that case,.there is no evidence of any negligence on the part of the engineer. The two claims are conflicting upon the evidence upon some points. There is evidence on the part of the plaintiff which tends to show, as is claimed, at least by inference, that the valves were opened and steam emitted from the engine after the engine had come to a standstill and had backed off the highway, 'leaving room for the plaintiff to pass with his team, or Mr. Weightman to pass. On the other hand, it is claimed on the part of the defendant that these steam-valves were not at any time open after the train came to a halt. I instruct you, as a matter of law, that if the steam-valves were not opened by the engineer, there is no evidence of any negligence on his part which would justify a recovery in this action.
If, on the other hand, you find that the steam-valves were open so as to emit steam in the manner claimed, it then becomes a question of fact for you to determine whether, under all the circumstances of this case, in view of all the surroundings, the location and situation of the train, and the duty which the engineer owed in the conduct of the train to look out in the direction in which the train -was then going — to wit, to the rear of the train, as well as to use reasonable caution with reference to this highway — as to whether or not, as a matter of fact, the engineer was in the exercise of due and proper caution; and if he was, the plaintiff cannot recover. If he was not, the other questions will then be opened for your consideration. In other words, whether, in opening the valves, under the circumstances of this case, if you find the valves to have been open, the engineer exercised such care as a person of ordinary prudence would exercise under like circumstances; if he did, he was not guilty of negligence; if he did not, he would be guilty of negligence.
*596 From what I have said to you you will understand that if both parties, the driver of this vehicle, Mr. Weightman, and the engineer, were alike in the exercise of ordinary care, and there was no negligence on the part of either, then this injury would be what is termed a mere accident, and there could be no recovery, and no liability on the part of either. If you find that there was negligence on the part of the engineer in the conduct of this train, and in the manner alleged, it then becomes your duty to inquire whether the plaintiff, or the driver of the wagon, who stands in the same position as the plaintiff, contributed to that negligence. For the rule of the law is that no party can recover in a court of law for the negligence of another if his own negligence — -or if, as in this action, the negligence of the person with whom he is traveling in the vehicle, the driver of the vehicle in which he is traveling — contributes to the injury. And so I charge you as requested, any negligence of the driver is chargeable to the plaintiff in this case; and if there was negligence on the part of the driver which contributed to this injury, the plaintiff cannot recover.”
We think this charge of Judge Montgomery was correct, and the exceptions relied upon by the defendant’s counsel cannot be sustained. It was very fair, and stated the law applicable. to the facts presented by the testimony very clearly.
The defendant’s eighth request, and its 29th, 30th, 31st and 32d assignments of error, relate to the subject of damages and the court’s rulings thereon. In the request made, the court is asked to charge that plaintiff is limited in his declaration to recovery for loss of business to the period of one year. We do not think, however, such construction is the proper one to place upon the declaration. The plaintiff alleges that he was permanently disordered, and avers what had been the effect of the injury upon him in the past, and what was then apparent to him. We think the construction claimed by defendant’s counsel too narrow, and no error was committed in refusing the request. In the charge given, and to which the other exceptions relate, the court said to the jury: The plaintiff, if entitled to a verdict, would have the right to recover
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The exceptions cover nearly all the paragraph above quoted. We do not think they can be sustained. It seems to us that the items stated and pointed out to the jury enter' into the character and extent of the actual injury complained of, and for which the plaintiff is entitled to recover, if at all. Seger v. Barkhamsted 22 Conn. 298; Sedg. Dam. 648, note 2; Shearm. & Redf. on Neg. 606; Thomp. on Neg. 1258; 3 Suth. Dam. 712, and cases cited; Ransom v. New York & E. R. Co. 15 N. Y. 415.
We have passed in review all the points made in the case
The judgment must be affirmed.